Outa application: Courts can't fix political processes

Pierre de Vos

Pierre de Vos

Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

14 Dec 2012 02:42 (South Africa)

The North Gauteng High Court’s decision to dismiss Outa’s application to stop the implementation of e-tolling on Gauteng freeways provides a textbook example of how the media and middle class citizens often fail our democracy. It also serves as a warning that citizens should not turn to the courts in the hope that judges will help them to solve their political problems.

It might well be that e-tolling is not the most cost-effective, fair and efficient way to pay for the major upgrading of urban roads. It might also be that middle class citizens, who will now have to pay tolls every time they speed from Johannesburg to Pretoria in their sports utility vehicles and luxury sedans, will pay more than they would have paid if a different method were implemented to pay for the upgrade. It might even come to light – who knows – that there was some corruption or nepotism involved in the awarding of the e-tolling contract.

But these are not the questions acting Judge Vorster was called upon to answer – and rightly so. Outa could not provide the court with any evidence of corruption. The other questions raised above essentially relate to policy issues, which must be determined through the political process, not the courts.

It is important to remember how this case landed in court in the first place. Back in July 2007, Cabinet approved the implementation of the e-tolling for Gauteng and in October of that year the then Minister of Transport officially announced the launch of the project. As a result of the acceptance by National Cabinet of the toll road scheme, the toll road declarations – eventually attacked in court by Outa – took place.

As the court pointed out rather wryly, the members of Outa were, and probably still are, in favour of the upgrading of the freeway road system in Gauteng. However, it was only when they learnt about the proposed toll tariffs published in the media that “they became bewildered and concerned”. This was almost five years after cabinet had approved the upgrade of the roads through the implementation of an e-tolling system.

In my view the important question to ask is why members of the public only became outraged when newspapers splashed alarming news of the tariffs (since reduced) on their front pages. Somehow, no one – including, as far as I can tell, no one in the media – had thought of asking back in 2007 whether e-tolling was a good idea and how high the tariffs might have to be in order to recover the huge expense incurred by making Gauteng’s roads pretty for Sepp Blatter and his fellow raiders from Fifa.

Is this a failure of the media alone? After all, at the time the media failed to ask the most difficult questions and failed to seek answers in order to keep the public informed. The cabinet announcement of a toll financed road upgrade was never going to make for a sexy story in the absence of hard investigative work into how much the whole thing was going to cost, who was going to pay and who was going to benefit.

But maybe the (mostly) middle class citizens, who ignored the original announcement as well as the physical evidence of gantries being built all across the newly upgraded freeways of Gauteng, cannot escape responsibility. Surely, if citizens wanted the government to listen to them, then they have to remain vigilant about government decisions affecting them and must be prepared to organise against such plans from an early stage? As the Right2Know campaign has shown, public campaigns of this nature can have a huge impact, but it requires hard work and vigilance. In short it requires active citizens, ready to get involved and to get their hands dirty - even before it is apparent that they would be directly affected by a policy.

Sadly, when the original decision was taken to impose e-tolls on Gauteng freeways, middle class citizens were too busy doing other things to organise opposition to the idea in order to place political pressure on the Gauteng and National Government to stop what some must surely now think was an ill-conceived and expensive project. Too busy enjoying the bread and circus provided by the media (thanks to Polokwane, Julius Malema and Caster Semenya, amongst others), citizens did nothing until they realised how much it would cost them personally – and only then did they immediately ran to the courts. As if the courts – and not active citizens – are the ones who are supposed to stop unpopular policy decisions and to punish a government politically for making unwise or unpopular decisions.

When Outa finally approached the court to try and stop the implementation of e-tolling, it relied largely on the alleged failure of the government to take into account the costs of the upgrade as well the cost of operating the e-tolling system, arguing that given the cost, the decision to implement it was unreasonable and hence invalid.

The Constitutional Court drove a stake through the heart of this argument when it overturned the interim interdict against the introduction of e-tolling. In that judgment the Constitutional Court noted that the main thrust of Outa’s application was the alleged unreasonableness of the decision to proclaim the toll roads and then remarked:

“But unreasonable compared to what? The premise of the unreasonableness argument is that funding by way of tolling is unreasonable because there are better funding alternatives available, particularly fuel levies. But that premise is fatally flawed… [SANRAL] has to make its decision within the framework of Government policy. That policy excludes funding alternatives other than tolling. It is unchallenged on review… [but the]… making of the policy falls within the proper preserve of the executive and was, on the papers before the Court, perfectly lawful… The Courts in this country do not determine what kind of funding should be used for infrastructural funding of roads and who should bear the brunt of that cost. The remedy in that regard lies in the political process.”

That is why everybody agreed before the High Court that the costs of tolling, the merits of using tolls as a means to finance the upgrade and the proposed e-toll tariffs which would be necessary to finance the scheme, were irrelevant considerations for purposes of the High Court review. As the Constitutional Court had pointed out, those considerations fell within the preserve of executive government and therefore outside the jurisdiction of the courts.

Outa therefore had to argue, first, that SANRAL was required by law to include basic information relating to the capital costs involved, the costs of collecting toll and the suggested tariff of toll which is envisaged in its submissions to the Minister, which it did not do. Without this information, Outa argued, there could be no proper public consultation as required by the relevant legislation.

The court rejected this argument, pointing out that the section 27(4) of the SANRAL Act clearly requires public consultation on “the physical aspects of the proposed toll road declaration and particularly the situation of the proposed toll plazas” – not on the cost of the project or the tariffs to be charged. Although the court did not say so, this provision in the Act makes sense, as the tariffs to be charged for tolls is an operational decision, while decisions on the route of the toll road as well as the placing of gantries had the potential to influence the property prices of certain homeowners and would require broader consultation with those whose interests would be directly threatened by the decision.

Outa also argued, secondly, that adequate notice of the tolling system was not given to the public, making real public participation in the decision impossible. But the court pointed out that the proposed toll road declarations were published in the Government Gazette and in newspapers circulating in Gauteng. However, Outa suggested this was insufficient and that particular notices should have been put up adjacent to the roads in question. The judge also rejected this argument, pointing out that SANRAL was required to act fairly and that this requirement was met when it published the requisite information in the media. One assumes active citizens are aware of such notices.

“The publications in the Government Gazette and newspapers circulating in the areas in question were clearly adequate to inform interested persons of the proposed toll declaration. The argument that such notification was inadequate and therefore unfair, rests on the erroneous assumption that each and every user of the proposed toll roads had a right to be informed, given the importance of knowledge of the proposed expenditure of the scheme and the proposed tariffs that could be levied in due course.”

I suspect that some citizens are going to complain bitterly about the outcome of this judgment. Some might even channel their inner Gwede Mantashe and question the integrity of the presiding judge. Some might argue that the judge hid behind the separation of powers doctrine to abdicate his judicial responsibilities or to make a career-advancing ruling that would please the ANC government.

These mutterings will be irresponsible and dangerous. One criticises the substance of a judgment and the nature of the statements made by a judge; one does not impugn a judge’s integrity merely because one does not like the outcome of one of his or her judgments. Questioning the integrity of the judge would also be ill-informed and based on a lazy assumption that judges should interfere in policy decisions even when citizens failed to do their bit to block such decisions because they were too busy making money or planning their next oversees holiday. It is the media and ordinary citizens who failed our democracy in this case – not our courts. DM

Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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